Concept

As we have seen, the Constitution of Kenya 2010 has sought to address and mitigate for past injustices of representation by providing for fair, equitable and inclusive representation for the individual and the group. These provisions have been designed around the Constitution's framework of devolution in which the country has been divided into 47 geographical units to be known as Counties. Every County is divided into several constituencies. Each Constituency is further divided into geographical electoral units known as Wards. No geographical constituency cuts across more than one County.

Every County has a government consisting of an executive arm and a legislative assembly. The executive arm of the County government is led by a directly-elected Governor, while the elected Ward representatives will form the County Assembly. Through devolution and decentralisation in general, and affirmative action, the people of Kenya hope to progressively achieve optimum (proper, manageable and sustainable) representation for all.

Geographical Representation

The new structure of representation is not based only on geography. Its design incorporates significant affirmative action for minorities. In other words, the voter will directly elect candidates to represent geographic areas and special interests, while political parties too, will nominate candidates to represent specific individual and group interests. We will begin our discussion by considering the design behind the delineation of geographical electoral areas, and thereafter examine that which has informed the representation of the individual as part of a special interest group.

In order to ensure the fair and equitable sub-division of electoral areas in Kenya, the New Constitution has spelt out guiding formulae mainly anchored on geography and population quotas, to define those areas. Excerpts from Article 89 of Chapter 7 - Representation of the People:

89. (12) ........“population quota” means the number obtained by dividing the number of inhabitants of Kenya by the number of constituencies or wards, as applicable, into which Kenya is divided under this Article.

(6) The number of inhabitants of a constituency or ward may be greater or lesser than the population quota by a margin of not more than— (a) forty per cent for cities and sparsely populated areas; and (b) thirty per cent for the other areas.

As sub-article (6) alludes, the mathematical quota provision for electoral areas is not cast in stone - to allow for deliberations, for consultations, and to factor new and emerging socio-political and economic dynamics in the future. This formulae also consider population densities, composition, historical and social-economic factors etc:

(5) The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota, but the number of inhabitants of a constituency may be greater or lesser than the population quota in the manner mentioned in clause (6) to take account of— (a) geographical features and urban centres; (b) community of interest, historical, economic and cultural ties; and (c) means of communication.(8) If necessary, the Commission shall alter the names and boundaries of constituencies, and the number, names and boundaries of wards.

Sub-clause (5)(b) and Clause (8) above have led to the renaming of some Constituencies with some reverting to names of old that represented "community of interest, historical and cultural" demographics. An example of a renamed constituency is Baringo East which is now known as Taity. Others such as Embakasi Constituency in Nairobi County have been split (into Embakasi North, South, East, West, Central Constituencies) to meet 'population quota' requirements; while new ones have been carved out of existing constituencies such as Jomvu from Changamwe in Mombasa County.

It is important to mention to the reader here that the mathematical quota allowing for Ward populations and hence Ward boundaries, is inadequate in several ways in ensuring that constituencies within a county are permitted equal numbers of representation at the local County Assembly.

The first reason for this is the fact that the delimitation of County boundaries is not based on populations at all but rather on a historical fact of Districts under the old provincial administrative boundaries (see the discussion on the 47 Counties of Kenya). Therefore, invariably, there are constituencies that contribute much larger proportions of County Assembly Members than others within the same County - all things constant. Secondly, the fact of unequal population densities in constituencies within the same County is also a major contributor to this disparity. And thirdly, the requirement in the New Constitution that granted some Constituencies "Protected" status during the review of boundaries by the IEBC meant that an imperfect outcome was arrived at in many areas.

Had the IEBC's hands not been tied in this way, some constituencies would have been done away with, new ones created, and others delimited as appropriate. Despite these shortcomings, Kenya's New Constitution does go a long way in the democratisation of representation.

The Independent Electoral and Boundaries Commission IEBC is the main body mandated by the New Constitution to set, to review and to assign names and boundaries to electoral areas in Kenya. Excerpts from Chapter 7 - Representation of the People, Part 2 - IEBC and Delimitation of Electoral Units, Article 89:

89. (2) The Independent Electoral and Boundaries Commission shall review the names and boundaries of constituencies at intervals of not less than eight years, and not more than twelve years, but any review shall be completed at least twelve months before a general election of members of Parliament. (3) The Commission shall review the number, names and boundaries of wards periodically.

Clause (2) ensures that delimitation of electoral boundaries is in sync with the ten year population census cycle in Kenya - a recommendation suggested by the Kriegler Commission; and provides adequate time for debate by all stakeholders, before an election is held. It also eradicates gerrymandering by the political elite.

Meanwhile, the Senator for Makueni is pushing forth the County Boundaries Bill 2015 mainly to address the confusion and tensions that have arisen around County boundaries since the CoK 2010 was adopted. Delimitation of County boundaries is not the work of the IEBC but that of a different body (in this case, the Independent County Boundaries Commission) that the Bill seeks to set up. Chapter 11 - Devolved Government, Part 4 - The Boundaries of Counties:

188. (1) The boundaries of a county may be altered only by a resolution––(a) recommended by an independent commission set up for that purpose by Parliament; .......

(unfinished.......)

Virtual Representation

The second part of the design governing representation under the Constitution of Kenya 2010 embraces the concept of affirmative action towards previously marginalised groups and communities. Before we delve deeper into the design, it is prudent to define the terms "marginalised groups" and "marginalised communities". From Chapter 17 - General Provisions, Article 260 of the New Constitution:

260. In this Constitution, unless the context requires otherwise— “marginalised community” means— (a) a community that, because of its relatively small population or for any other reason, has been unable to fully participate in the integrated social and economic life of Kenya as a whole; (b) a traditional community that, out of a need or desire to preserve its unique culture and identity from assimilation, has remained outside the integrated social and economic life of Kenya as a whole; (c) an indigenous community that has retained and maintained a traditional lifestyle and livelihood based on a hunter or gatherer economy; or (d) pastoral persons and communities, whether they are— (i) nomadic; or (ii) a settled community that, because of its relative geographic isolation, has experienced only marginal participation in the integrated social and economic life of Kenya as a whole; “marginalised group” means a group of people who, because of laws or practices before, on, or after the effective date, were or are disadvantaged by discrimination on one or more of the grounds in Article 27 (4);

These groups are loosely referred to as minorities. To be fair, a group or community may be categorised as a minority in one context (or in a constitutionally-defined geographical area such as a County, but yet be a majority in another context such or area. Thus for example, the pastoral and nomadic communities of the Maasai whom Article 260 above recognises, are nevertheless, majorities in their "home" Counties of Kajiado and Narok. It should therefore not be lost on the reader, that devolution and decentralisation are not always geared to address the needs of minorities and the marginalised only, but also those of the majority and the densely populated who too, have a right to efficient (or fair) representation.

Article 260 has therefore given rise to the creation of new "virtual" Constituencies (special interests) at both the national and local levels, under affirmative action towards enhancing representation. Excerpts from Article 95 in Chapter 8 - The Legislature, Part 1 - Establishment and Role of Parliament:

95. (1) The National Assembly represents the people of the constituencies and special interests in the National Assembly .......

This is to say, our New Constitution has provided for multi-member representation of the voter as an individual (in a geographical area) and the voter as a member of an interest group (virtual representation). Most of these virtual constituencies for minorities are represented by members nominated by political parties under the political party lists requirements within the CoK 2010, the Elections Act, the Political Parties Act, etc. Many provisions in the Constitution of Kenya 2010, have laid the ground for affirmative legislation towards minorities and special groups both nationally and at the local level. At the national level the idea of "party lists" attempts to have minorities play important roles even within the larger political parties that may be dominated by majority groups and communities. Excerpts from Chapter 7 - Representation of the People, Part 3 -Political Parties, Article 91:

91. (1) Every political party shall—.......(e) respect the right of all persons to participate in the political process, including minorities and marginalised groups; ...... .

At the local level of the County Assemblies, Parliament is expected and obliged to ensure that there is adequate national legislation that guarantees adequate proportions of specially-elected County Assembly members (Representatives of virtual constituencies) who will represent the interests of county minorities and other marginalised groups; i.e, a vote and voice to take care of local minority interests: Excerpt from Article 197:

197. (2) Parliament shall enact legislation to— (a) ensure that the community and cultural diversity of a county is reflected in its county assembly and county executive committee; and (b) prescribe mechanisms to protect minorities within counties.

This is important in Kenya because of our ethnic and cultural diversity and I dare say - polarization. The general idea is to not only appease the previously marginalised by creating space for them at the high table, but to also thrust to the fore, them that have remained (whether by design or otherwise) in the periphery of local politics, or the indeed, the bigger arena of nationhood. The foregoing point has been captured and addressed in Article 100 in Part 2 - Composition and Membership of Parliament contained in Chapter 8 - The Legislature, and which defines who really constitute such groups:

And Article 177 of Chapter 11 on Devolved Government, Part 2 - County Governments:

177. (1) A county assembly consists of— .......(c) the number of members of marginalised groups, including persons with disabilities and the youth, prescribed by an Act of Parliament; ....... .

It is safe to say therefore that moving forward, the New Constitution attempts to guarantee meaningful participation of minorities in local and national politics especially when one takes into account the fact that almost all Counties have a dominant ethnic (sometimes two) or other group, and a sprinkling of smaller groups from either neighbouring Counties or by way of migration and settlement from every corner of the Republic. This is a good thing and should promote harmony and unity.

To paraphrase these thoughts on the representation concept, the term "Constituency" has acquired multiple definitions under our New Constitution to provide for fair and equitable representation at both the national and local legislative and executive levels of government. As we have seen, its meaning will now not just define geographical areas, but will include diverse permutations of representation of interest groups, communities and persons, etc.